United States of America v. Michael Malinowski

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1831
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL M ALINOWSKI ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 1:21-cr-00032-1 — Steven C. Seeger, Judge.
____________________
S UBMITTED JANUARY 23, 2025 — DECIDED F EBRUARY 21, 2025
____________________
Before HAMILTON , S CUDDER , and J ACKSON -A KIWUMI ,
Circuit Judges.
S CUDDER , Circuit Judge. Michael Malinowski challenges a
12-month federal sentence for violations of his supervised re-
lease and seeks to modify the terms of his new period of su-
pervision. We find no error with his 12-month sentence and
affirm that aspect of the district court’s judgment. But we va-
cate two of his new supervised release conditions and remand
to allow the district court to revisit and revise them.

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2 No. 24-1831
I
In 2008 Malinowski pleaded guilty to receiving child por-
nography in violation of 18 U.S.C. § 2252A(a)(2). A district
court in the Southern District of New York sentenced him to
150 months’ imprisonment followed by a lifetime of super-
vised release. Malinowski’s release conditions required him
to participate in sex-offender treatment, to refrain from com-
mitting another crime, and to avoid deliberate contact with
children—including entering schools. Malinowski completed
his sentence and began his term of supervised release in 2018.
Malinowski later moved to the Northern District of Illinois
and the probation office there took over his supervision. In
2021, shortly after his move, Malinowski underwent a psy-
chosexual assessment as part of his sex-offender treatment.
Based on the results, a treatment provider recommended that
Malinowski refrain from accessing any pornography. A pro-
bation officer then proposed modifying the terms of his su-
pervised release to add the following condition:
You shall not possess or have under your con-
trol any pornographic, sexually oriented, or sex-
ually stimulating materials, including visual,
auditory, telephonic, or electronic media, com-
puter programs, or services. You shall not pat-
ronize any place where such material or enter-
tainment is available. You shall not use any sex-
related telephone numbers.
Malinowski, who did not have counsel at the time, waived
his right to a hearing on the modification, and the district
court imposed the proposed condition.

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No. 24-1831 3
Malinowski first violated his supervised release condi-
tions in 2022, when he cashed a fraudulent check. He pleaded
guilty to forgery in state court in 2023, and probation then
sought to revoke his federal supervised release based on the
state court conviction as well as his failure to attend a man-
dated therapy session. The district court declined to revoke
supervised release at that time but admonished Malinowski
to review and comply with his release conditions. The court
warned that it would take seriously any further violations.
A week later, a monitoring device on Malinowski’s phone
flagged another potential violation of his release conditions.
The device captured a photograph of Malinowski with a child
inside a school. At a hearing before the district court, Mali-
nowski explained that the child in the photograph was his sis-
ter’s granddaughter. He said he had given his sister, who uses
a wheelchair, a ride to her granddaughter’s basketball game
and only briefly entered the school. The district court ques-
tioned Malinowski’s credibility and emphasized that his re-
lease conditions categorically and without exception pre-
vented him from entering schools. The district court ulti-
mately found Malinowski guilty of three violations: cashing a
fraudulent check in violation of state law, failing to attend a
therapy session, and entering a school.
The district court then imposed a revocation sentence of
12 months—two months above the high-end of the advisory
range set out in the Sentencing Guidelines but below the stat-
utory maximum of 24 months. See 18 U.S.C. § 3583(e)(3). In
explaining the sentence, the district court discussed and ap-
plied the factors set forth in 18 U.S.C. § 3553(a). The court rec-
ognized Malinowski’s military service and medical condi-
tions as mitigating factors. But the court also found the

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4 No. 24-1831
explanation for entering the school unpersuasive and under-
scored that Malinowski had committed a violation one week
after it warned him to review his release conditions. And
when speaking directly to the decision to sentence above the
Guidelines range, the court stressed Malinowski’s history of
noncompliance with the conditions and the risk he posed to
children by entering a school.
In imposing its sentence, the district court also discussed
a brief text message exchange between Malinowski and an
adult woman. The monitoring device on Malinowski’s phone
had captured the limited exchange—though neither the pro-
bation office nor the government mentioned the texts in their
requests for revocation. Still, the district court brought up the
texts and expressed concern that they were “erotic” and
“graphic” in nature. The court acknowledged that the texts
did not violate Malinowski’s release conditions but found
them relevant to “his history, his story, [and] his characteris-
tics.” The messages “trouble[d]” the district court, making it
“wonder if” Malinowski was “a defendant who [was] able to
change” or if he was instead “hardwired to pose a threat to
the community going forward.”
From there, the district court modified the conditions of
supervised release, which will apply after Malinowski com-
pletes his revocation sentence in March 2025. Only two con-
ditions are relevant on appeal.
First, the district court imposed a condition barring pos-
session of all “sexually stimulating materials”—identical to
the one the probation office first proposed in 2021. Malinow-
ski objected that the condition was not necessary. He con-
trasted this condition with another proposed condition (to
which he had no objections) allowing the district court to bar

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No. 24-1831 5
possession of such materials if a “treatment provider deter-
mine[d]” it likely to assist the treatment process. Malinowski
acknowledged that a treatment provider had recommended
three years earlier that he refrain from accessing any pornog-
raphy. But he emphasized that, upon completing his revoca-
tion sentence, he would likely start a new round of treatment
with a different provider—one who would be better able to
determine the necessity of such a condition. For now, Mali-
nowski continued, it was “too early” to impose the condition
“without the necessary evaluations,” especially given the
breadth and strictness of the pornography limitation. The dis-
trict court disagreed, finding that nothing in the record sug-
gested the condition was no longer necessary.
Second, the district court imposed a condition prohibiting
Malinowski from residing with children or being in his home
with them. When the district court adopted the condition at
the sentencing hearing, it included language clarifying that
children could not enter Malinowski’s home “when [he was]
present.” The written judgment, however, omitted this clari-
fication—instead prohibiting children from entering his resi-
dence “at any time.” In short, the district court’s oral pro-
nouncement of the condition conflicted with its written judg-
ment.
Malinowski now appeals his 12-month sentence and the
two release conditions.
II
We begin with a preliminary but important matter of pro-
cedure. In our court, Malinowski has filed an unopposed mo-
tion to expedite this appeal and waive oral argument. Though
Malinowski timely filed a notice of appeal in May 2024, the

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6 No. 24-1831
district court did not approve his request for the relevant sen-
tencing transcripts until October 2024. That delay left Mali-
nowski’s counsel without the necessary transcripts for appeal
until November 2024. Malinowski understandably now urges
us to resolve his appeal before his expected release from
prison on March 13, 2025. Otherwise, Malinowski contends,
the challenge to his term of imprisonment risks becoming
moot.
We grant Malinowski’s motion. The five-month delay he
experienced in the district court’s approving his request con-
cerns us, especially when time was of the essence for his ap-
peal. The reasons for the delay are unclear, but it is unfortu-
nate that it put Malinowski in the position of having to waive
oral argument at the risk of mooting his appeal.
III
That brings us to the merits of Malinowski’s appeal.
A
Malinowski contends that the district court procedurally
erred at sentencing by imposing an above-Guidelines sen-
tence as punishment for constitutionally protected activity:
his exchange of sexually explicit text messages with a consent-
ing adult. We review alleged procedural errors at sentencing
without deference. See United States v. Jerry, 55 F.4th 1124,
1130 (7th Cir. 2022). A district court can commit procedural
error by “failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to ade-
quately explain the chosen sentence—including an explana-
tion for any deviation from the Guidelines range.” Gall v.
United States, 552 U.S. 38, 51 (2007).

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No. 24-1831 7
We see no error. The sentencing transcript shows that the
district court relied on permissible considerations, namely
Malinowski’s history of noncompliance and the seriousness
of his entry into a school while children were present. Indeed,
the district court emphasized those factors specifically—and
not the text messages—when explaining its decision to im-
pose a variance. And we must affirm where, “[t]aken as a
whole,” the record “demonstrate[s] that the court based its
sentence on considerations authorized by law.” United States
v. Saldana-Gonzalez, 70 F.4th 981, 985 (7th Cir. 2023) (citation
omitted).
But we owe a few words on the district court’s discussion
of the text messages. The district court commented on the text
at length despite recognizing that nothing about it—a very
limited exchange between two adults about sexual activity
they had engaged in—was illegal or in any way a violation of
a supervised release condition. At one point the district court
wondered aloud whether the text messages showed that Ma-
linowski was “hardwired to pose a threat to the community.”
The statement gives us substantial pause, for we do not
know what to make of it. Perhaps it was no more than an awk-
wardly phrased observation about Malinowski’s criminal his-
tory. But it could also be read as sweeping and ambiguous
commentary on Malinowski’s character. At the very least, the
statement was beside the point and unnecessary. Sometimes
less is more.
In the final analysis, however, our review of the entire
transcript shows that the district court adequately grounded
Malinowski’s sentence in the § 3553(a) factors. And it is on
that basis that we affirm the 12-month sentence.

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8 No. 24-1831
B
We turn now to the two challenged release conditions.
Malinowski contends that the first condition is unconstitu-
tional and the second inconsistent with the district court’s oral
pronouncement.
1
Though we typically review constitutional challenges to
conditions of supervised release without deference, a defend-
ant may waive such challenges. See United States v. Flores, 929
F.3d 443, 449 (7th Cir. 2019). Malinowski maintains that the
release condition barring him from possessing any “sexually
stimulating materials” or patronizing any places where such
material is available is overbroad and unconstitutionally
vague. For its part, the government does not defend the con-
dition on the merits, urging instead that Malinowski waived
his ability to appeal it on constitutional grounds.
We do not see any waiver on this record. Malinowski ob-
jected to the condition at the hearing, asserting that it was un-
justifiably strict absent a recommendation from a treatment
provider. To be sure, Malinowski did not cast his objection in
constitutional terms, but it does not follow that he intention-
ally relinquished a known right. See United States v. Olano, 507
U.S. 725, 733 (1993) (defining waiver); see also Flores, 929 F.3d
at 449 (finding waiver where “[w]e can reasonably infer” that
a defendant’s decision not to object to a specific condition
“was strategic and intentional”). At most, then, Malinowski
forfeited his constitutional challenge.
We review forfeited challenges for plain error. See Olano,
507 U.S. at 734. And our review here can be brief because the
government does not attempt to defend the condition and

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No. 24-1831 9
instead concedes that a remand is warranted to permit the
condition to be revisited under the standards we articulated
in United States v. Adkins. See 743 F.3d 176, 194 (7th Cir. 2014)
(determining that a broad supervised release condition “pro-
hibit[ing] viewing or listening to sexually stimulating mate-
rial” is unconstitutional). We accept the invitation and vacate
the condition.
2
That brings us to Malinowski’s challenge to the incon-
sistency between the district court’s oral pronouncement and
its written judgment. In the event of a conflict, an unambigu-
ous oral pronouncement governs over a written judgment.
See United States v. Johnson, 765 F.3d 702, 710–11 (7th Cir.
2014).
The parties agree that the district court’s oral pronounce-
ment of the condition barring children from entering Mali-
nowski’s home conflicts with the written judgment. And the
parties further agree that the district court’s oral pronounce-
ment unambiguously limited the condition to apply only
when Malinowski is present. That leaves us to vacate the con-
dition so the district court can correct the written judgment
on remand.
* * *
For these reasons, we AFFIRM Malinowski’s sentence but
VACATE the two challenged supervised release conditions.
On remand, the district court should revise the first chal-
lenged condition so that it is consistent with this opinion and
Adkins and, with respect to the second challenged condition,
correct the written judgment to match the court’s oral pro-
nouncement. The mandate shall issue immediately.

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